ANTONY Vs. PADMAVATHY AMMA

JUDGEMENT

(1.) The sole defendant in O.S. No. 229/2009 on the file of the Munsiff's Court, Cherthala, is the Petitioner in this Writ Petition filed under Article 227 of the Constitution of India. The said suit instituted by the respondent herein, as originally filed, was one for a declaration of prescriptive easement of the plaintiff over the plaint schedule item No. 3 pathway and for a permanent prohibitory injunction restraining the defendant from making any obstruction to the plaint schedule item No. 3 pathway and for fixation of the boundaries of the plaint schedule item No. 1 belonging to the plaintiff and for consequential reliefs. It was later amended seeking a prayer for mandatory injunction as well.

(2.) The proceedings impugned in this Writ Petition are Ext.P-3 order dated 14-7-2009 passed by the Munsiff's Court, Cherthala and Ext.P-5 judgment dated 10-12-2009 passed by the Sub Court, Cherthala concurrently allowing the plaintiff's application filed as I.A. 2066 of 2009 for an interim mandatory injunction directing the defendant/Writ Petitioner to demolish that portion of the compound wall which blocks the plaint schedule item No. 3 pathway used by the plaintiff for ingress and egress to the plaint schedule item No. 1 from the Municipal gravel road on the south. THE PLAINTIFF'S CASE

(3.) The case of the plaintiff can be summarised as follows: Plaint schedule Item No. 1 absolutely belongs to the plaintiff as per a registered partition deed of the year 1987 and she is in exclusive possession and enjoyment of the same paying the land tax and effecting improvements thereon. The plaint schedule item No. 2 lying to the south of the plaint schedule item No. 1 belongs to the defendant. Along the southern boundary of plaint schedule item No. 2 is a Municipal gravel road running east-west. Plaint schedule item No. 3 is a pathway having a width of 2 metres and starting from the aforesaid municipal gravel road and running north words through the plaint schedule item No.2. The plaintiff has been using the plaint schedule item No. 3 pathway for ingress and egress to the plaint schedule item No. 1 for more than 20 years and in continuation of the user by her predecessors-in-interest. The said pathway has been used peaceably, openly, as a right and as an easement without interruption for more than 20 years and the plaintiff has thus prescribed a right of easement over the plaint schedule item No.3 pathway. The plaintiff has no other pathway besides the plaint schedule item No. 3 pathway for ingress and egress to the plaint item No. 1 from the Municipal public road referred to above. The plaintiff has a right of easement by way of necessity as well over the plaint schedule item No. 3 pathway. The defendant or anybody else acting under him has no manner of right whatsoever to obstruct the user of the said pathway by the plaintiff. However, with an intention to deny the plaintiff her right over the said pathway, the defendant has on 5-5-2009 unloaded huge quantities of rubles, bricks, river sand etc. in the plaint schedule item No. 2. On enquiry about the unlawful and illegal attempt on the part of the defendant, the plaintiff was threatened by him on 5-5-2009 saving that he was going to construct a compound wall across the plaint schedule item No.3 pathway. The defendant even threatened the plaintiff that he will trespass into the plaint schedule item No. 1 and cut and remove valuable trees standing therein. Hence, the suit.